California Labor Code § 5402

Determinative passage · p.4section 5402(b), which states, “If liability is not rejected within 90 days after the date the claim form is filed under Section 5401, the injury shall be presumed compensable under this division. The presumption of this subdivision is rebuttable only by evidence discovered subsequent to the 90-day period.” Preliminarily, we note that applicant seeks relief from the Board by petitioning for reconsideration and in the alternative for removal. Pursuant to section 5900, the Board only has jurisdiction to grant reconsideration from a “final order, decision, or award.” In Maranian v. Workers’ Compensation Appeals Bd. (2000) 81 Cal.App.4th 1068 [65 Cal.Comp.Cases 650], it was held that a ruling regarding the applicability of the section 5402(b) presumption is “final” for purposes of section 5900, and thus properly raised by way of a petition for reconsideration. We therefore consider the merits of applicant’s contentions as a petition for reconsideration. Turning to the merits, we do not find the fact that two numbers were transposed in an apparent typographical error to invalidate the denial. We note that Administrative Rule 9812 does not require the date of injury to be listed in a Notice of Denial. (Cal. Code Regs., tit. 8, § 9812, subd.

Determines presumption applies if claim not denied within 90 days of filing

Determinative passage · p.10This issue was raised by applicant at the time of trial but was rendered moot when the undersigned found industrial causation based on AME Kent. However, to the extent that petitioner is contending that the undersigned should not have relied on AME Kent, it is important to also address whether or not applicant’s injury should be presumed compensable. Even though the issue was deemed moot, the undersigned did nevertheless address this in its Opinion on Decision. Specifically, Labor Code §5402 states, “[i]f liability is not rejected within 90 days after the date the claim form is filed under Section 5401, the injury shall be presumed compensable.” That said, Labor Code §5401(d) states “a claim form is deemed filed when it is personally delivered to the employer or mailed to the employer by first-class or certified mail”. Here, based on the unrebutted and undisputed testimony of applicant’s wife, a claim form was mailed to the employer in 10/2015.

Liability was not rejected within 90 days, so injury is presumed compensable shifting burden to defendant to prove non-industrial causation.

Determinative passage · p.17B. PRESUMPTION OF COMPENSABILITY Labor Code Section 5402 (a) states: “ Knowledge of an injury, obtained from any source, on the part of an employer, his or her managing agent, superintendent, foreman, or other person in authority, or knowledge of the assertion of a claim of injury sufficient to afford opportunity to the employer to make an investigation into the facts, is equivalent to service under Section 5400. “ Reyes testified that when he fell off the ladder at Sephora on 3/14/24 that he called Mark to tell him that he could not finish the job because he was injured. However, Reyes also testified that he fainted during this incident and did not have a clear recollection of what occurred. He heard someone say, “Call 9-1-1” and he head the paramedics say, “Wake up” (MOH SOE 10/30/25 3:20- 25, 4:1-2).

The denial letter was issued more than 90 days after claim filing, so presumption applied.

Determinative passage · p.4Pursuant to section 5402(b)(1), "[i]f liability is not rejected within 90 days after the date the Claim Form is filed under Section 5401, the injury shall be presumed compensable under this division." As noted above, the Claim Form was filed and served on June 28, 2023. As such, defendant had 90 days from June 28, 2023, to deny applicant's claim. To date, no denial has been issued. Further, during the October 2, 2025 trial, the parties stipulated to the lack of a denial and the applicability of the 5402(b)(1) presumption. (MOH and SOE, October 2, 2025, p. 2.)

Once the Claim Form is filed and no denial is issued within 90 days, the injury is presumed compensable, shifting the burden to the defendant to rebut with evidence discovered after the 90-day period.

Determinative passage · p.41. Lien claimant is entitled to reimbursement for treatment provided during the delay period for the defendant's failure to establish medical control and provide medical care.

Lien claimant's claim for reimbursement during delay period was deferred pending injury findings.

Determinative passage · p.1Lien claimant contends that it is entitled to reimbursement during the delay period pursuant to Labor Code section 5402(c) because the employer failed to provide notice of its medical provider network and failed to comply with its statutory treatment and notice obligations following receipt of notice of applicant's claimed injury. Lien claimant also contends the reporting of Omid Haghighinia, D.C., is a valid medical-legal expense because the reporting addressed the compensability of a disputed claim.

Lien claimant contended entitlement to reimbursement during the delay period pursuant to this statute.

Determinative passage · p.8In this matter, we agree with the WCJ that the presumption of compensability afforded under section 5402 does not apply. In order for an alleged industrial injury to be presumed compensable pursuant to section 5402(b), the applicant must show when defendant received the DWC-1 claim form. Here, there is no evidence applicant ever filed a claim form with the employer, as required by sections 5401(c) and (d). In order to trigger the section 5402(b) presumption of compensability, use of the claim form is mandatory, and the filing of an application is not sufficient to trigger the presumption. As applicant has not demonstrated when the employer received the claim form, the presumption of compensability under section 5402(b) is not applicable. We note, however, that even without the presumption of compensability, applicant is still "free to prove in the ordinary manner his injury's industrial causation." (Wagner, supra, at p. 104.)

Presumption of compensability applies if employer does not deny liability within 90 days of claim form filing; applicant did not file claim form here.

Determinative passage · p.5Ninety days from July 27, 2011, the day Dr. Moshfegh reports applicant notified his employer of his injury, is October 5, 2011. The record contains a denial letter dated November 16, 2011 for a date of injury dated May 26, 2011, which is after the expiration of the 90-day period from July 27, 2011. (Defendant Exhibit A, Denial Letter.) Given the confusion as to the dates of injury, we refrain from making any opinions as to the issue of presumed compensability and return this matter to the trial level to develop the record on this issue. (Lab. Code, § 5701, 5906; Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389, 394 [62 Cal.Comp.Cases 924]; see McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117 [63 Cal.Comp.Cases 261]; McDuffie v. Los Angeles County Metropolitan Transit Authority (2001) 67 Cal.Comp.Cases 138 (Appeals Board en banc).)

The Appeals Board refrained from deciding presumed compensability due to date confusion and remanded for further record development.